Gary Friedrich Enterprises, LLC. et al v. Marvel Enterprises, Inc. et al
Filing
334
MEMORANDUM OPINION & ORDER re: 307 MOTION for Summary Judgment filed by Gary Friedrich Enterprises, LLC., 304 MOTION for Summary Judgment filed by Marvel Worldwide, Inc., Relativity Media L.L.C., Marvel Entertainment, LLC, Take Two Interactive So ftware, Inc., Marvel Characters B.V., Marvel International Character Holdings, Inc., Columbia Pictures Industries, Inc., Hasbro, Inc., Marvel Characters, Inc., Michael De Luca Productions, Inc., Crystal Sky Pictures, Sony Pictures Entertainment, Inc. , MVL International C.V., Marvel Studios, Inc. Defendants October 17, 2011 motion for summary judgment is GRANTED. Plaintiffs October 17, 2011 motion for summary judgment is DENIED. The conduct of further proceedings in this action shall be governe d by an order issued separately with this Memorandum Opinion. The claim of ownership over the Character and the Work (Count I) is resolved in Defendants favor, which necessarily disposes of Plaintiffs claims for infringement relating to (i) the use o f the Character in movies by Marvel and the Movie Defendants (Count II); and (ii) the use of the Character with respect to toys and video games (Count III). Accordingly, Plaintiffs remaining claims in the First Amended Complaint, filed March 28, 2011 (Dkt. No. 95-2)--Counts I, II and III--are dismissed. The conduct of further proceedings in this action shall be governed by an order issued separately with this Memorandum Opinion. The Clerk of Court is directed to terminate the motions (Dkt. No. 304 and 307). (Signed by Judge Katherine B. Forrest on 12/28/2011) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- X
:
GARY FRIEDRICH ENTERPRISES, LLC,
:
et al.,
:
:
Plaintiffs,
:
:
:
-v:
MARVEL ENTERPRISES, INC., et al.,
:
:
Defendants.
:
:
------------------------------------- X
08 Civ. 1533 (KBF)(JCF)
MEMORANDUM OPINION
& ORDER
KATHERINE B. FORREST, District Judge:
The Ghost Rider has been an iconic character for several
decades.
He has appeared in numerous comic books, movies, video
games, toys and other specialty items.
The first phase of the
instant lawsuit, commenced in 2007 by plaintiffs Gary Friedrich
Enterprises, LLC and Gary Friedrich (“Friedrich,” and
collectively with the LLC, “Plaintiffs”), comes down to one
determinative question:
do Plaintiffs own any rights in the
Ghost Rider character (the “Character”) and/or, what is referred
to in the comic book and character industry as the Character’s
“origin story” (which first appeared in a volume of Marvel
Comics called “Spotlight 5” and referred to herein by that name
or the “Work”)?
If Plaintiffs own any rights--either as sole or
as a joint author of the Character and Work--then Plaintiffs’
1
claims against Marvel 1 for copyright infringement could result in
a damages award. 2
After several years of litigation, including
substantial document productions and numerous depositions, both
sides have now moved for summary judgment on the question of
ownership.
A substantial amount of effort throughout the litigation
and the majority of the briefing on these dueling motions
relates to the question of whether Friedrich created the Ghost
Rider character and the Work as a “work for hire.”
If so, then
Plaintiffs effectively agree that all rights passed to Marvel.
See Pls.’ & Counterclaim-Defs.’ Mem. In Supp. of Mot. for Summ.
J. (Dkt. No. 312) at 3-4.
If, on the other hand, the Character
and Work were not created as works for hire, then at the
expiration of the original copyright term (conceded by both
sides to be 2001), the renewal rights to both the Character and
the Work reverted to Plaintiffs.
If that were the case, Marvel
would have no remaining property rights in either the Character
or the Work.
1
“Marvel” is used herein to refer to defendants Marvel Entertainment, Inc.,
formerly known and sued in this action as Marvel Enterprises, Inc., Marvel
Studios, Inc., Marvel Characters, Inc., Marvel Characters B.V., Marvel
Worldwide, Inc. formerly known as Marvel Publishing, Inc., Marvel
International Character Holdings, LLC, sued herein as Marvel International
Holdings, Inc. and MVL International C.V. as well as the predecessors-ininterest of those companies, including but not limited to Marvel
Entertainment Group, Inc., Cadence Industries Corporation and Magazine
Management Co., Inc.
2
The Court dismissed all Plaintiffs’ other claims under state law and the
Lanham Act upon adoption of Magistrate Judge Francis’ Report and
Recommendation. See Dkt. No. 34.
2
For the reasons set forth below, the Court finds that it is
unnecessary to reach the question of whether or not the
Character and Work were created as works for hire:
all of the
briefing--and what would certainly amount to triable issues of
fact on those questions--are irrelevant to the determination of
the instant motions.
This Court finds that there were at least
two moments in time when Friedrich definitively conveyed by
contract to Marvel all rights of whatever nature, including any
renewal rights to the Character and the Work:
(1) at the time
of payment for the initial creation of the Character and Work in
1971 and 1972; and (2) in a separate contract signed in 1978 by
Friedrich and Marvel Comics Group, a division of Cadence
Industries Corporation (and defined therein as “Marvel”) (the
“1978 Agreement”). 3
There is no triable issue of fact as to
whether (a) in 1971, Friedrich conveyed any rights he may have
had to both the Character and the Work to Marvel and (b) in
1978, he again conveyed to Marvel any rights he then had or
could have in the future in the Character and the Work.
Either
one of those contractual transfers would be sufficient to
resolve the question of ownership.
Together, they provide
redundancy to the answer that leaves no doubt as to its
correctness.
3
At the time Friedrich and Marvel Comics entered into the 1978 Agreement,
the term “Marvel” referred to, inter alia, Marvel Entertainment Group (a
predecessor-in-interest to defendant Marvel Entertainment, Inc.).
3
Accordingly, Defendants’ motion for summary judgment is
GRANTED and Plaintiffs’ motion for summary judgment is DENIED.
BACKGROUND:
THE GHOST RIDER RIDES AGAIN 4
While the parties agree on very little, the evidence in the
record is clear that in 1971 Friedrich worked on, and in April
of 1972 the Marvel Comics Group division of Magazine Management
Co., Inc. (“MMC,” a predecessor-in-interest to defendant Marvel
Characters B.V.) subsequently published, “Marvel Spotlight, Vol.
1, No. 5.”
Defs.’ Stmt. Of Undisputed Facts (“Defs. Stmt.”)
(Dkt. No. 306) ¶ 33; Pls.’ Stmt. Of Undisputed Facts (“Pls.
Stmt.”) (Dkt. No. 311) ¶ 103.
created Ghost Rider character.
Spotlight 5 introduced a newly
By all accounts, the Ghost Rider
in Spotlight 5 differed significantly from another, earlier
Marvel Comics character by the same name.
The Ghost Rider of
the 1950’s and early 1960’s was a “Western” character who rode a
horse and was apparently mortal in all respects.
¶ 5; see also
Defs. Stmt.
Pls.’ Resp. to Defs. Stmt. (Dkt. No. 325) ¶ 5.
The 1972 Spotlight 5 publication introduced readers to a new,
motorcycle-riding Ghost Rider whose head was skeletal and at
times had fire blazing from it.
Pls. Stmt. ¶ 34.
Defs. Stmt. ¶ 6; cf. id. ¶ 60;
The new Ghost Rider had superhero
characteristics and was somewhat mystical.
A supporting cast of
characters, including Johnny Blaze (the Ghost Rider’s alter
4
The below recitation of facts are undisputed unless otherwise indicated.
4
ego), Roxanne Simpson, and Crash Simpson, were also first
introduced in Spotlight 5.
Cf. Pls. Stmt. ¶¶ 59, 111.
There is also no dispute that Friedrich conceived and wrote
the text of the first Spotlight 5 comic book that introduced the
new Ghost Rider and the supporting cast.
The parties do not
dispute that on the first publication of Spotlight 5 in April
1972, the “credits box” inside the book’s “splash page” stated
that the Work was “conceived and written by” Friedrich.
Pls.
Stmt. ¶ 89; see also Defs. Resp. to Pls. Stmt. (Dkt. No. 329) ¶
89.
The Work also bore a copyright notice in the name of
“Magazine Management Co., Inc., Marvel Comics Group.”
Stmt. ¶ 34; see also Pls. Resp. to Defs. Stmt. ¶ 34.
Defs.
In spring
and summer of 1972, MMC published Issue III of Spiderman and
other comics that contained a feature called “Marvel Bullpen
Bulletin” (i.e., an article within comic books through which MMC
“spoke to its fans”) which told readers to look out for
Spotlight 5 because it would introduce the new Ghost Rider
character.
¶ 118.
Pls. Stmt. ¶ 118; see also Defs. Resp. to Pls. Stmt.
The Bullpen article attributed the Character to
Friedrich, stating that he had “dreamed the whole thing up.”
Pls. Stmt. ¶ 121; see also Defs. Resp. to Pls. Stmt. ¶ 121.
It is also undisputed that Friedrich never raised an issue
regarding Marvel’s exploitation of the Ghost Rider character and
the creation of numerous subsequent episodes until sometime in
5
or after 2004.
Stmt. ¶ 68.
Defs. Stmt. ¶ 68; see also Pls. Resp. to Defs.
It is undisputed that Friedrich only wrote several
episodes of the Ghost Rider, but that others also wrote Ghost
Rider episodes, even while Friedrich continued to write as a
freelance comic book writer for Marvel.
Defs. Stmt. ¶ 42; see
also Pls. Resp. to Defs. Stmt. ¶ 42.
There is extensive testimony in the record and recited in
the briefs regarding the general process Marvel used to create
comic books.
Plaintiffs agree that Marvel employed a process to
create comic books called the “Marvel Method,” but state that
there were a variety of methods to which that moniker was
Pls. Resp. to Defs. Stmt. ¶¶ 8-9; see also Defs.
attributed.
Stmt. ¶ 8.
As discussed below, Plaintiffs, however, dispute
only one (irrelevant) step in the Marvel Method used to create
the Work.
As discussed below, it is useful for this Court to
understand the characteristics of the Marvel Method used in the
context of creating the Work when it interprets the 1978
Agreement.
The parties disagree as to whether the first step of what
would typically have initiated the Marvel Method was followed
here--i.e., assignment or independent development of a synopsis
of a character or work.
to Defs. Stmt. ¶ 10.
Defs. Stmt. ¶ 10; see also Pls. Resp.
Frankly, that step is not relevant here.
From that point forward, Plaintiffs agree with the description
6
of the Marvel Method.
In addition to the first step, the
typical method involved (2) an artist (not the writer)
illustrating a work based on the synopsis, (3) providing the
illustrated panels to the writer for text to be written (for the
Ghost Rider episode in Spotlight 5, there is no disagreement
that plaintiff was the writer), (4) a “letterer” placing the
text in the appropriate spot on the illustration (sometimes in
consultation with the writer), (5) an “inker” applying color,
and (6) finally, printing and distribution of the comic book.
See Defs. Stmt. ¶ 8.
All of that occurred on a schedule set by
an editor employed by Marvel.
Cf. id. ¶ 17.
It is undisputed
that the Marvel Method steps 2-6, and the schedule on which this
was all done, occurred in the case of Spotlight 5.
Defs. Stmt.
¶¶ 9, 13, 15, 17-19.
It is also undisputed that all of the individuals who
performed the tasks involved in steps 2-6, as well as the cost
of publication and distribution, were paid for by Marvel.
Stmt. ¶¶ 20, 22.
Defs.
No other participants in Spotlight 5 other
than Friedrich and Marvel, has raised a claim of ownership with
respect to the Character or Work.
It is undisputed that Friedrich had been both an employee
and freelance comic book writer for Marvel for a period of time
preceding and then following the publication of Spotlight 5.
See Friedrich Dep. at 16:13-16:19; 47:13-47:22.
7
In connection
with his work as an employee, Friedrich was paid with a payroll
check, Friedrich Dep. at 111:3-10; for his freelance work, he
and other freelancers, were paid separately by check, Pls. Stmt.
¶ 21.
When freelancers were paid by separate check, there would
be a legend on the back of the check that, as described by
Friedrich at his deposition, “said something about by signing
over the check I gave over my rights to Magazine Management,
Marvel, whoever.”
Friedrich Dep. at 142:9-142:15; see also
Defs. Stmt. ¶ 78.
Friedrich conceded that the checks he
received during the time period in which he created the
Character and the Work contained the assignment legend.
Friedrich Dep. at 142:25-143:5.
Friedrich also admitted that
there were legends on the back of his freelance checks and that
he signed the checks.
Friedrich Dep. at 180:23-181:8.
It is
undisputed that Friedrich was paid as a freelancer in the
ordinary course for his work on Spotlight 5:
the record
evidence is that freelance work was paid for with separate
checks containing that legend, Pls. Stmt. ¶ 21--and there is no
evidence in the record that the freelance checks he received for
the Work varied from typical practice and did not contain the
legend.
Friedrich testified at his deposition that when he
discussed the Ghost Rider idea with the two senior editorial
employees, Roy Thomas and Stan Lee, he understood that Marvel
8
would own the rights to the Character and the Work for comic
books--but, without any articulation on his part, let alone
acknowledgment on the part of Marvel management, he asserts that
he assumed that he would personally retain rights to exploit the
Character and the Work in other, non-comic mediums.
Dep. at 77:14-77:23; 79:9-79:22.
Friedrich
At the time, he was
considering the possibility of a television show, but there is
no evidence in the record that raises any issue of fact that he
discussed this or obtained any agreement from Marvel that even
television rights would be left out of the bundle of rights that
Marvel would own.
See Friedrich Dep. at 108:11-108:23.
At some point, Friedrich, who had been residing in New York
City, moved to Missouri.
Friedrich Dep. at 42:4-42:25.
However, he continued to write freelance comics for Marvel.
Friedrich Dep. at 43:6-22.
See
It is undisputed that in 1978,
Friedrich signed the 1978 Agreement, the consideration for which
was the possibility of future freelance work.
Defs. Stmt. ¶ 46;
Pls. Resp. to Defs. Stmt. ¶ 46; see also Friedrich Dep. at
101:5-101:8.
Friedrich concedes that he had read the 1978
Agreement when he signed it, that he discussed it with other
freelancers--in particular, the topic of relinquishing rights
which they may have had in exchange for the possibility of
additional work--and that he understood its import.
Dep. at 101:15-101:16, 105:3-105:21.
9
Friedrich
Friedrich also testified
that following execution of the 1978 Agreement, he essentially
disappeared for a year--he was an alcoholic and was riding in a
truck with a friend for a period of time.
44:4-44:13.
Friedrich Dep. at
There is no evidence in the record that Friedrich
was therefore able to be located for freelance work from Marvel
after signing the 1978 Agreement, or that he sought such work.
Sometime between 2000 and 2001, Friedrich became aware of
additional exploitations of the Ghost Rider character.
He
consulted two sets of counsel, the first represented him in or
around April 2004 in connection with asserting rights that would
have provided him a financial participation in the first of what
are now about to be two Ghost Rider feature films.
¶ 67; see also Pls. Resp. to Defs. Stmt. ¶ 67.
Defs. Stmt.
After counsel
was unsuccessful in obtaining Plaintiffs participation rights,
there was a several year hiatus in Plaintiffs’ pursuit of legal
action.
During that period, Defendants continued an
uninterrupted active exploitation of Ghost Rider--including
release of the Ghost Rider film and licensing associated in toy
and promotional products.
Defs. Stmt. ¶¶ 49-50, 52, 66.
In 2007, Plaintiffs retained current counsel and this
lawsuit followed on April 4 of that year.
Plaintiffs’ remaining claims assert copyright infringement:
(i) against Marvel for ownership of the renewal rights in the
Character and the Work; (ii) arising from unauthorized creation
10
and profiting from the Ghost Rider film (against Marvel and the
“Movie Defendants” 5); and (iii) for unauthorized use of the Work
and Character in the creation of toys, video games and other
products against Marvel and defendants Hasbro, Inc. and Take-Two
Interactive Software, Inc.
As stated above, the parties
cross-moved for summary judgment on the question of ownership.
The resolution of ownership in Defendants’ favor necessarily
resolves the infringement claims relating to the Ghost Rider
movie, video games, toys and promotional products.
DISCUSSION
Summary judgment may not be granted unless all of the
submissions taken together “show that there is no genuine issue
as to any material fact and that the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
The
moving party bears the burden of demonstrating “the absence of a
genuine issue of material fact.”
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett, 477
In making that determination, the court
must “construe all evidence in the light most favorable to the
nonmoving party, drawing all inferences and resolving all
ambiguities in its favor.”
Dickerson v. Napolitano, 604 F.3d
732, 740 (2d Cir. 2010).
Once the moving party has asserted facts showing that the
5
The Movie Defendants are Columbia Pictures Industries, Inc. (also sued in
this action as Columbia Tri-Star Motion Picture Group), Crystal Sky, LLC,
Michael De Luca Productions, Inc., Relativity Media, LLC, and Sony Pictures
Entertainment Inc.
11
non-movant's claims cannot be sustained, the opposing party must
“set out specific facts showing a genuine issue for trial,” and
cannot “rely merely on allegations or denials” contained in the
pleadings.
Fed. R. Civ. P. 56(e); see also Wright v. Goord, 554
F.3d 255, 266 (2d Cir. 2009).
“A party may not rely on mere
speculation or conjecture as to the true nature of the facts to
overcome a motion for summary judgment,” as “[m]ere conclusory
allegations or denials cannot by themselves create a genuine
issue of material fact where none would otherwise exist.”
Hicks
v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
Only disputes over material facts--“facts that might affect the
outcome of the suit under the governing law”--will properly
preclude the entry of summary judgment.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(stating that the nonmoving party “must do more than simply show
that there is some metaphysical doubt as to the material
facts”).
The law is clear that when an individual endorses a check
subject to a condition, he accepts that condition.
See Archie
Comic Pubs., Inc. v. DeCarlo, 258 F. Supp. 2d 315, 331 (S.D.N.Y.
2003) (finding that an endorsement on a check assigning “all
right, title and interest” to the comic book publisher by the
artist assigned all rights, including copyrights, to the
12
publisher).
See also In re Flax, 179 B.R. 408, 412 (Bankr.
E.D.N.Y. 1995) (a legend on a certified check requiring
endorsement for payment “made it clear that the checks’ payment
would be conditioned on obtaining the proper endorsement”).
As a result of that straightforward legal proposition, it is
unnecessary for this Court (or a jury) to travel down the rabbit
hole of whether the Character and Work were in fact originally
created separate and apart from Marvel, whether they are a “work
for hire,” or whether during an initial conversation in which
Friedrich obtained consent to proceed with the project that
eventually became the Work, he had thoughts about what rights he
might want to retain. 6
There is no triable issue of fact that
Friedrich was paid in any manner other than the routine and
typical manner in which he was paid for his other freelance
work--and that this would have included a check with a legend of
assignment that became operative upon endorsement.
As a result,
if Friedrich (and thus, Plaintiffs) had any rights to the
Character or the Work at the time he endorsed the checks (a
question we need not resolve), he relinquished those rights to
Marvel.
See Archie Comic Pubs., Inc., 258
F. Supp. 2d at 331
(finding that an endorsement on a check that assigned “right,
title and interest in and to the strip, copy, art, continuity,
6
Regardless, Friedrich conceded at his deposition that he did not articulate
his thoughts about any retained rights during the initial conversation about
the Character. Friedrich Dep. at 108:11-108:23.
13
characters, story or manuscript entitled or used in” the story
“support[ed] the view that ACP [i.e., the publisher] was the
sole owner of all rights”).
The law surrounding renewal rights, and what is required to
convey renewal rights, can be complicated.
That complexity is
enhanced by the fact that the 1909 and 1976 Copyright Acts deal
with renewal rights in slightly different ways.
It is
uncontested that the Character and Work were “published” (as
that term of art is used in the copyright laws) in 1972.
This
Court has previously determined that the 1976 Act applies to the
Character and the Work.
See Dkt. No. 28 (“although the instant
case involves copyrighted material and noncopyrightable
intellectual property created during the late 1960s and early
1970s . . ., the 1976 Act controls”); see also Dkt. No. 34
(adopting Dkt. No. 28).
Regardless of whether the 1909 or 1976
Act applies, the law is clear that the presumption against the
conveyance of renewal rights may be overcome “where the author
includes language which expressly grants rights in renewals of
copyright or extensions of copyright.”
P.C. Films Corp. v.
MGM/UA Home Video Inc., 138 F.3d 453, 457 (2d Cir. 1998).
Language in a contract that includes “‘general words of
assignment can include renewal rights,’” including words such as
“forever,” “hereafter,” and “perpetual” effectively convey
14
renewal rights.
Id. (quoting Siegel v. Nat’l Periodical Pubs.,
Inc., 508 F.2d 909, 913 (2d Cir. 1974)).
The language of the 1978 Agreement could not be clearer:
“SUPPLIER [i.e., Friedrich] expressly grants to MARVEL
forever all rights of any kind and nature in and to
the Work, the rights to use SUPPLIER’s name in
connection therewith and agrees that MARVEL is the
sole and exclusive copyright proprietor thereof having
all rights of ownership therein.” (emphasis
supplied).
By this assignment, in 1978 Friedrich undoubtedly conveyed
whatever renewal rights he may have retained, if any.
See,
e.g., P.C. Films Corp., 138 F.3d at 457.
Plaintiffs have raised a series of arguments as to why the
1978 Agreement should be ignored.
None have merit.
Plaintiffs argue that the language of the 1978 Agreement
has to be read to refer only to works that “SUPPLIER” (here,
Friedrich) “prepared or performed” “for the Marvel Comics
Group.”
Plaintiffs focus on the word “for” as if it necessarily
means that the works encompassed by the 1978 Agreement would
have to be works for hire, and that if they were not “for”
Marvel, and thus not works for hire, then the 1978 Agreement has
no force and effect.
Pls.’ & Counterclaim-Defs.’ Mem. In Opp’n
to Defs. Mot. for Summ. J. (Dkt. No. 322) at 21-22 (“Pls.
Opp’n”); see also id. at 21 n.17.
That reading, however, would
render the contract a nullity always.
If it was only to cover
works that Marvel already unambiguously owned, then there would
15
be no need to enter into the agreement at all.
The law provides
that contracts should not be interpreted in a way that suggests
that the drafters were irrational or that would render them a
nullity ab initio.
See, e.g., LaSalle Bank Nat’l Assn. v.
Nomura Asset Capital Corp., 424 F.3d 195, 206 (2d Cir. 2005);
Legal Aid Soc’y v. City of New York, 114 F. Supp. 2d 204, 229
(S.D.N.Y. 2000) (“[B]asic principles of contract interpretation
militate against the adoption of an interpretation that would
render any portion of the contract language a nullity.”). 7
In any event, it is clear from the undisputed facts
regarding the Marvel Method, however, that there were at least
six steps relating to the development of the Character and the
Work that only occurred once the project had been approved.
The
illustrator created the drawings of the character and the
storyline, Friedrich as writer then wrote the text that the
letterer placed in the correct portion of the drawing--all of
this was then inked, published and distributed.
Throughout this
process, the typical practice was for Friedrich to have been
paid on an ongoing basis, and there is no evidence in the record
that he was not.
Thus, Friedrich both endorsed over any rights
he had in the Character and Work upon deposit of the checks
bearing the assignment legend, but there were also a sufficient
7
Plaintiffs concede that New York law applies to the 1978 Agreement.
Pls. Opp’n at 23.
16
See
number of involved steps in the creation and finalization of the
project that it would be illogical to suggest that since Marvel
was paying for all of it, it was not at that point “for” them.
Plaintiffs also argue that the 1978 Agreement is an
unenforceable contract of adhesion.
Pls. Opp’n at 23-24.
law does not support that assertion.
The
Friedrich was not required
to sign the contract--he could have declined and sought work
with some other comic book company.
Indeed, he had been
employed by other companies in the past.
See, e.g., Friedrich
Dep. at 13:4-13:7, 16:11-16:14, 32:17-33:7.
There is nothing in
the record to suggest that the only possible entity for whom he
could have freelanced was Marvel.
JPMorgan
See, e.g., Anonymous v.
Chase & Co., No. 05 Civ. 2442, 2005 WL 2861589, at *6
(S.D.N.Y. Oct. 31, 2005) (a contract was not unconscionable
“particularly when the plaintiff had the ability to go to other
sources . . .”).
Plaintiffs also argue that the contract lacked
consideration because Friedrich never in fact received any
additional freelance work from Marvel.
Pls. Opp’n at 22-23.
However, there is evidence in the record that Friedrich was
effectively unavailable following execution of the contract for
reasons that had nothing to do with Marvel and everything to do
with his personal circumstances.
In any event, the law is clear
that unless there was fraud involved at the outset, the fact
17
that a promise of future work does not materialize does not
eliminate that promise as sufficient consideration to support a
contractual bargain--i.e., it is well settled that an exchange
of promises is sufficient to satisfy the legal requirement of
consideration.
See Restatement (Second) of Contracts §§ 17, 71,
75 (2011); see also id. § 79 (“If the requirement of
consideration is met, there is no additional requirement of . .
. mutuality of obligation.”). 8
As a result, this Court finds that there is no triable
issue of fact regarding whether the 1978 Agreement conveyed
whatever rights Plaintiffs may have had at that time or would
have acquired in the future, including renewal rights.
See,
e.g., P.C. Films Corp., 138 F.3d at 457.
For the reasons set forth above, this Court need not reach
the issues of whether the Character and Work were works for
hire, or whether Plaintiffs at one time had rights as a joint
author.
Both conveyances in the endorsed checks and the
contractual endorsement that occurred in the 1978 Agreement
effectively ended any remaining ownership claims Plaintiffs
might have had.
8
Plaintiffs further attempt to obscure the clarity of the assignment in
1978 Agreement by arguing that the agreement was between Friedrich and
Cadence Industries Corporation, and that the Work was created “pursuant
agreement with Magazine Management.” Pls. Opp’n at 21. The undisputed
show that Friedrich understood that “Marvel Comics Group” as defined in
1978 Agreement referred to Magazine Management. See Friedrich Dep. at
31:9-31:19.
18
the
to an
facts
the
CONCLUSION
Defendants’ October 17, 2011 motion for summary judgment is
GRANTED.
Plaintiffs’ October 17, 2011 motion for summary
judgment is DENIED. 9
The claim of ownership over the Character
and the Work (Count I) is resolved in Defendants’ favor, which
necessarily disposes of Plaintiffs’ claims for infringement
relating to (i) the use of the Character in movies by Marvel and
the Movie Defendants (Count II); and (ii) the use of the
Character with respect to toys and video games (Count III).
Accordingly, Plaintiffs’ remaining claims in the First Amended
Complaint, filed March 28, 2011 (Dkt. No. 95-2)--Counts I, II
and III--are dismissed.
The conduct of further proceedings in this action shall be
governed by an order issued separately with this Memorandum
Opinion.
The Clerk of Court is directed to terminate the motions
(Dkt. No. 304 and 307).
SO ORDERED:
Dated:
New York, New York
December 28, 2011
__________________________________
KATHERINE B. FORREST
United States District Judge
9
The Court is not aware of any caselaw, and Plaintiffs cite to none, in
support of Plaintiffs’ argument that Marvel’s mirror copyright counterclaim
is barred by the applicable statute of limitations.
19
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